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Madam Justice Smith has confronted this difficult issue in Carter v Canada, 2012 BCSC 866, concluding that the Criminal Code prohibitions are invalid because they violate the Charter rights of the plaintiffs (a woman with a fatal neurodegenerative disease and the daughter and son-in-law of another woman who terminated her life in Switzerland with their assistance, where to do so is legal).

Smith J noted that while some of the issues were canvassed in Rodriguez v BC (Attorney General), [1993] 3 SCR 519, the Charter jurisprudence has moved on since then. It is clear from Rodriguez that the prohibition on doctor-assisted death engages s 7 rights to security of the person and liberty, but leaves open whether the legislation infringes the right to life. The earlier case was, however, decided before the emergence of two principles of fundamental justice for Charter purposes, that laws must not be overbroad or grossly disproportionate, and also did not determine whether s 15 equality rights had been infringed. In Justice Smith’s view, the assisted-death provisions do infringe equality rights because they make a legal act more difficult for people with physical disabilities – a distinction that is both discriminatory and unjustifiable under the s 1 analysis. An absolute prohibition goes too far: while there is disagreement as to the effectiveness of safeguards designed to prevent abuse in jurisdictions where assisted dying is permitted, a limited and carefully monitored system could be devised. Section 7 rights are also infringed, either by their ‘very severe’ effect on liberty and security of the person or right to life (including the right to shorten life) or in criminalising the acts of persons who have assisted others to die. These infringements were also found to be unjustified, as overbroad and disproportionate in relation to the objectives of the prohibition. The prohibition was declared invalid, but this was suspended for a year to allow parliament to devise better legislation. One of the plaintiffs was granted a constitutional exemption during the period of suspension to permit her to proceed with a plan to end her life (if she decides to do so) with the assistance of her physician under specified conditions. An appeal is expected.